Flag desecration explained

Flag desecration is a term applied to the desecration of flags or violation of flag protocol, a various set of acts that intentionally destroy, damage, or mutilate a flag in public. Often, in case of a national flag, such action is intended to make a political point against a country or its policies. Some countries have laws forbidding methods of destruction (such as burning in public) or forbidding particular uses (such as for commercial purposes); such laws may distinguish between desecration of the country's own national flag and flags of other countries.

Background

Actions that may be treated as flag desecration include burning it,[1] urinating or defecating on it, defacing it with slogans,[1] stepping upon it, damaging it with stones or guns, cutting or ripping it,[1] verbally insulting it, or dragging it on the ground.[2]

Flag desecration may be undertaken for a variety of reasons. It may be a protest against a country's foreign policy, including one's own, or the nature of the government in power there. It may be a protest against nationalism or a deliberate and symbolic insult to the people of the country represented by the flag. It may also be a protest at the very laws prohibiting the act of desecrating a flag.

Burning or defacing a flag is a crime in some countries. In countries where it is not, the act may still be prosecuted as disorderly conduct, arson, or, if conducted on someone else's property, theft.

Using a flag unconventionally, such as hanging it upside down or reversed, may be regarded as desecration.[1] Flying a flag at half-mast is considered desecration in Saudi Arabia.[3] In some countries, however, flying a flag upside-down is conventional protocol to indicate an emergency or problem, or to indicate a state of war. Moreover, some flags (such as the flag of Austria) when hung upside down and/or reversed look the same because they are vertically and/or horizontally symmetrical.

Some countries regard it as desecration to make toilet paper, napkins, doormats, and other such items bearing the image of the flag, so that the flag's image will be destroyed or soiled. It is, however, increasingly common in some countries to see clothing with the image of the flag forming a substantial part of the piece. Views vary as to whether some of this is an act of national pride or disrespect.

By jurisdiction

Algeria

In Algeria, flag desecration is a crime. According to article 160bis of the Algerian penal code, the intentional and public shredding, distortion, or desecration of the national flag is punishable by 5 to 10 years of imprisonment.

In 2010, an Algerian court convicted 17 people of flag desecration and punished them by up to 6 years of imprisonment and $10,000 in fines after protests about jobs and housing.

Argentina

The Penal Code (Código Penal) on its Article 222 criminalizes the public desecration of the national flag, coat of arms, national anthem, or any provincial symbol, imposing from 1 to 4 years of imprisonment.[4]

Australia

Legality

Flag desecration is not, in itself, illegal in Australia.[5] However, flag desecration must otherwise be compliant with the law.

In Coleman v Kinbacher & Anor (Qld Police),[6] Coleman was successfully prosecuted for flag burning, not because of its political nature, but because given the size of the flag, the use of petrol as an accelerant, and the fact that it was in an open park area, many members of the public experienced "concern, fright and anger", and in these circumstances flag burning could be considered disorderly conduct.

Attempts to ban flag burning

There have been several attempts to pass bills making flag burning illegal in Australia, none of which have yet been successful. As of May 2016, the most recent bill which attempted to ban flag burning was the Flags Amendment (Protecting Australian Flags) Bill 2016, which was introduced by National Party MP George Christensen and is not proceeding.[7]

Historical occurrences

During the 2005 Cronulla riots, a Lebanese-Australian youth, whose name has been kept secret, climbed an Returned and Services League (RSL) club building and tore down its flag before setting it on fire. The youth was sentenced to 12 months probation not for flag desecration but for the destruction of property of the RSL.[8] In October of that year the youth accepted an invitation from the RSL to carry the Australian flag along with war veterans in the Anzac Day march the following year.[9] However, the RSL was forced to withdraw this invitation as it received phone calls from people threatening to pelt the youth with missiles on the day.[10] The head of the New South Wales RSL was quoted as saying that "the people who made these threats ought to be bloody ashamed of themselves".[9]

In 2006, Australian contemporary artist Azlan McLennan burnt an Australian flag and displayed it on a billboard outside the Trocadero artspace in Footscray, Victoria. He called the artpiece Proudly UnAustralian.[11]

The socialist youth group Resistance marketed "flag-burning kits"—inspired by, and to protest, the censorship of Azlan McLennan's art—to university students.[12]

Tasmanian Aboriginal Centre worker Adam Thompson burned the Australian flag on the week of Australia Day (2008) celebrations in Launceston's City Park to the cheers of about 100 people, who were rallying against what they call "Invasion Day".[13]

Tent embassy activists burned the Australian flag on 27 January 2012 at the entrance to Canberra's Parliament House as they called for Aboriginal sovereignty over Australia.[14]

Austria

In Austria flag desecration is illegal under §248 Strafgesetzbuch.[15] Offenders can be fined or punished with up to 6 months of imprisonment. Under §317 Strafgesetzbuch desecration of flags of foreign states or international organizations can be punished if Austria maintains diplomatic relations with them or belongs to the respective organization.[16] As Austria was formerly part of Nazi Germany, use of the Nazi flag in Austria today is illegal (see section Germany – Nazi flag below).

Brazil

Brazilian law number 5700,[17] from 1971, article 31, point out the forms of disrespect as the following:

I – Being presented or flying it in a poor condition;

II – Changing the proportions, colors, shape, label or add any other inscriptions;

III – Using it as a clothing piece, mouthpiece, drapery, tablecloth or napkin, table trim, podium coating, or as a cover for objects that are to be inaugurated; and

IV – Using it as a label or wrapping for products at a sale.

Also, in the article 30, caput, it is stated that, when in March or parade, such as the execution of National Anthem, all people must take a respectful attitude, standing and in silence, with the male civilians without any head cover and the military personnel in the salute or present arms stance, following each corporation internal regulations.

Article 32 says that the flags in bad condition must be sent to the nearest military unit, for incineration in the Flag's Day, following the ceremonial procedures.

Article 33 rules that may not be any foreign flag in its right side, in the same size and in a highlight position over the Brazilian flag, when inside Brazilian territory, except when at diplomatic missions, such as embassies and consulates.

According to this same law's article 35, the act of a civilian breaking this law is considered a misdemeanor, punished with a fine of one to four times the highest reference value active in the Country, and doubled in repeated infringement cases; in the Brazilian Armed Forces' Military Penal Code,[18] article 161, the soldier, airman or seaman that disrespect any national symbol is punished with one to two years of detention, and the officer may be declared incompatible with the officership.

Belgium

Flag desecration is not forbidden by Belgian law. Flemish nationalists have burned Belgian flags on at least one occasion.[19]

Canada

See main article: Flag of Canada. Canada has no laws prohibiting flag desecration. Acts of this nature are forms of expression protected by the Canadian Charter of Rights and Freedoms.

In 1999, members of the Westboro Baptist Church from the United States staged a burning of the Canadian Flag outside of the Supreme Court of Canada in Ottawa, Ontario. This was to protest legalization of same-sex marriage which was being adjudicated by the Canadian court.

China

Flag desecration is prohibited in China. The penal code[20] provides for an imprisonment up to three years, criminal detention, public surveillance, or deprivation of political rights for anyone who "desecrate[s] the National Flag (Wǔ Xīng Hóngqí) or the National Emblem of the People's Republic of China by intentionally burning, mutilating, scrawling on, defiling or trampling upon it in public".

Croatia

Croatian history recalls the burning of the flag of the Kingdom of Hungary during the 1895 visit of Emperor Franz Joseph to Zagreb. Two people involved in the incident, Stjepan Radić and Vladimir Vidrić, later pursued notable careers in politics and literature, respectively. In modern Croatia it is illegal to desecrate any flag or to treat any flag in a disrespectful manner. Offenders are punishable with up to one year of imprisonment.[21]

According to Danish tradition, burning is the proper way to dispose of a worn Dannebrog flag.[25] According to tradition, care must be observed to ensure that a flag never touches the ground, i.e., even when being disposed of, it should be placed on top of a fire. Flying the flag after sundown is also inappropriate behaviour.[26]

Faroe Islands

According to the Faroese flag law the Faroese flag, Merkið, may not be desecrated, "neither by words or by deeds".[27]

Finland

According to the law on the Finnish flag,[28] it is illegal to desecrate the flag, treat it in disrespecting manner, or remove it from a public place without permission.

France

According to French law,[29] outraging the French national anthem or the French flag during an event organized or regulated by public authorities is liable for a fine of €7,500 (and six months' imprisonment if performed in a gathering). The law targets "outrageous behaviour" during public ceremonies and major sports events.

This clause was added as an amendment to a large bill dealing with internal security, in reaction to a football match during which there had been whistles against La Marseillaise, but also to similar actions during public ceremonies.[30] The amendment initially prohibited such behaviour regardless of the context, but a parliamentary commission later restricted its scope to events organized or regulated by public authorities,[31] —which is to be understood, according to the ruling of the Constitutional Council as events organized by public authorities, mass sport matches and other mass events taking place in enclosures, but not private speech, literary or artistic works, or speech during events not organized or regulated by public authorities.[32]

In 2006, a man who had publicly burnt a French flag stolen from the façade of the city hall of Aurillac during a public festival, organized and regulated by public authorities, was fined €300.[33]

A July 2010 law makes it a crime to desecrate the French national flag in a public place, but also to distribute images of a flag desecration, even when done in a private setting.[34] On 22 December 2010, an Algerian national was the first person to be convicted under the new status, and ordered to pay a €750 after breaking the pole of a flag hung in the Alpes-Maritimesprefecture a day prior.[35]

Germany

Under German criminal code (§90a Strafgesetzbuch (StGB)) it is illegal to revile or damage the German federal flag as well as any flags of its states in public. Offenders can be fined or sentenced to a maximum of three years in prison, or fined or sentenced to a maximum of five years in prison if the act was intentionally used to support the eradication of the Federal Republic of Germany or to violate constitutional rights. Actual convictions because of a violation of the criminal code need to be balanced against the constitutional right of the freedom of expression, as ruled multiple times by Germany's constitutional court.[36]

It is illegal to damage or revile flags of foreign countries, if they are shown publicly by tradition, event, or routinely by representatives of the foreign entity (§104 StGB). On the other hand, it is not illegal to desecrate such flags that serve no official purpose (especially any provided by the perpetrator).

During the 2006 World Cup, the anti-German German musician Torsun (half of the group Egotronic) recorded a techno cover of the song "Ten German Bombers". The song and its accompanying YouTube video (featuring footage of German planes being shot down, the Wembley goal, a burning German flag, etc.) attracted media attention in Germany, as well as from the British tabloid News of the World. The song was eventually included in the World Cup–themed compilation Weltmeister Hits 2006.[39][40][41]

On 26 July 1935 in New York a group of demonstrators boarded the SS Bremen, tore the Nazi party flag from the jackstaff and threw it into the Hudson River. The German ambassador sharply protested, but the protest was rejected, with the judgement that only a party symbol was harmed and the national flag was not affected. On 15 September 1935, in response to this incident, the Reichsflaggengesetz (Reichs flag law) (RGBl. I S. 1145) came into effect, declaring the Nazi flag to be the exclusive national flag of Germany and removing the status of the black-white-red tricolor flag of the German Empire as co-national flag.

In January 1941, the flag of Nazi Germany flying from the German consulate in San Francisco was slashed and torn down by two United States Navy sailors. They were arrested, tried, and convicted of malicious mischief.[43] The German government protested the incident and the United States Department of State expressed their regrets.[44] Later that year, after Germany declared war on the United States, one of the sailors, Harold Sturtevant, who had been dismissed because of the incident, received a pardon and reenlisted in the Navy.[45]

The display of Nazi symbols for anything other than educational purposes is forbidden in Germany according to the German criminal code Strafgesetzbuch section 86a. Similar laws exist in Austria (Verbotsgesetz 1947,[46] Abzeichengesetz 1960[47]).

Hong Kong

The Chinese law about flag desecration were incorporated into Hong Kong law as the National Flag and National Emblem Ordinance in 1997 as required by Annex III of the territory's constitution. The Regional Flag and Regional Emblem Ordinance is the equivalent statute in respect of the Hong Kong flag. Both ordinances ban desecration of the Chinese flag and Hong Kong flag, respectively, through methods including "burning, mutilating, scrawling on, defiling or trampling".[48]

para. 24. auto. Qld.. "The objectionable feature of the conduct had very little to do with its political significance. It related to the lighting of a large piece of synthetic material to which petrol had been added in close proximity to larger numbers of people including young children. The circumstances were such as to arouse the apprehension of parents for the safety of their children."

The Constitutional Council considered that the events regulated by public authorities consist in public events of a sportive, recreative or cultural character organized in enclosures that law and regulations submit to health and safety rules because of their size. See Decision 2003-467 DC, section 104.